Weber v. State Univ. of N.Y.

• Citation: 150 A.D.3d 1429,55 N.Y.S.3d 753
• Parties: In the Matter of Michael WEBER, Petitioner, v. STATE UNIVERSITY OF NEW YORK, College at Cortland, et al., Respondents.
• Decision Date: 11 May 2017
• Court: New York Supreme Court Appellate Division

150 A.D.3d 1429
55 N.Y.S.3d 753

In the Matter of Michael WEBER, Petitioner,
v.
STATE UNIVERSITY OF NEW YORK, College at Cortland, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

May 11, 2017.

55 N.Y.S.3d 755

Scheuermann & Scheuermann, LLP, Albany (Arthur P. Scheuermann of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

McCARTHY, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Tompkins County) to review a determination of respondent

55 N.Y.S.3d 756

State University of New York, College at Cortland finding petitioner guilty of sexual misconduct in violation of said respondent's code of conduct.

In May 2013, petitioner—then a student at respondent State University of New York, College at Cortland (hereinafter SUNY Cortland)—engaged in sexual intercourse with the victim. A few hours after the incident, the victim reported the intercourse as a sexual assault at a local emergency room and, shortly thereafter, she reported the incident to SUNY Cortland. SUNY Cortland subsequently charged petitioner with two violations of its Code of Student Conduct (hereinafter the code), rape and sexual assault. Following a disciplinary hearing (hereinafter the first hearing) and subsequent administrative review, petitioner was found responsible for the charges and was dismissed from the school. That determination was annulled by petitioner's subsequent CPLR article 78 proceeding, based on a finding that SUNY Cortland did not comply with its own procedural rules, and the matter was remitted for a new hearing.

In June 2014, a rehearing was commenced, but was adjourned, before any evidence was presented, at petitioner's request in response to his claim that the Hearing Officer was biased. In July 2014, the rehearing was reconvened before a different Hearing Officer and petitioner again objected on the ground of hearing officer bias, but his objection was explicitly rejected and the hearing proceeded. After a six-hour hearing at which petitioner, the victim and other witnesses testified, the Hearing Officer issued a decision finding petitioner responsible for rape and sexual assault. The Suspension Review Panel adopted the Hearing Officer's decision and ordered petitioner dismissed from the school. The decision was affirmed, upon administrative appeal, by the Vice President of Student Affairs. Thereafter, petitioner commenced this CPLR article 78 proceeding, which was transferred to this Court.

The determination that petitioner committed the violations will be upheld if they are supported by substantial evidence in the record (see CPLR 7803 [4 ]; Matter of Schwarzmueller v. State Univ. of N.Y. at Potsdam, 105 A.D.3d 1117, 1120, 962 N.Y.S.2d 752 [2013] ; Matter of Abrahamian v. City Univ. of N.Y., 170 A.D.2d 233, 233, 565 N.Y.S.2d 511 [1991] ). Moreover, credibility determinations are " ‘within the sole province of [the Vice President of Student Affairs]’ " (Matter of Lambraia v. State Univ. of N.Y. at Binghamton, 135 A.D.3d 1144, 1146, 23 N.Y.S.3d 679 [2016], quoting Matter of Lampert v. State Univ. of N.Y. at Albany, 116 A.D.3d 1292, 1294, 984 N.Y.S.2d 234 [2014], lv. denied 23 N.Y.3d 908, 2014 WL 2936283 [2014] ). The code's prohibition on rape applies to "[t]he act of sexual intercourse without consent," while the prohibition on sexual assault includes "[a]ny engagement in sexual activity with another person without their consent." At the time of the alleged offense, the code specified that "[t]he act of consent requires spoken words or behavior that indicates, without doubt to either party, a mutual agreement to participate in sexual intercourse or other sexual activities. Indicators of consent do not include silence or past or present sexual relationships."

Substantial evidence supports the determination that the victim did not consent to having sexual intercourse with petitioner. The record evidence is uncontested to the extent that it established that petitioner and the victim were introduced at a bar and engaged in dancing and drinking alcoholic beverages. They left the bar when it closed and proceeded to a nearby playground, where the victim consented to

55 N.Y.S.3d 757

engaging in oral sex with petitioner. According to the victim, when they left the playground, she repeatedly asked to go to a friend's house instead of proceeding to petitioner's house as he had proposed, but petitioner said "no." After petitioner and the victim arrived at petitioner's house, they entered petitioner's room.

At around this time, the victim sent text messages to at least three individuals indicating that she feared that she was about to be raped. Without asking the victim whether she wished to have intercourse, petitioner asked whether she wanted him to use a condom, to which the victim replied yes. At the hearing, the victim stated that she believed that she was going to be raped and preferred that it occur with petitioner wearing a condom. According to the victim, prior to any intercourse occurring, she strapped on a football helmet that petitioner had placed on her head and thereafter pulled away from petitioner's attempts to kiss her. Moreover, the victim explained that, when she answered a friend's phone call, petitioner pushed her back onto the bed, knocking the phone out of her hand. The victim stated that she then told petitioner that she "needed" to go to her friend's house. The victim further indicated that she then just closed her eyes and froze while petitioner had intercourse with her. Both petitioner and the victim agreed that, to the extent that the victim's clothes were removed, they were removed by petitioner. When asked whether the victim had verbally consented to having intercourse in his room, petitioner stated that he had assumed that the victim wanted to have intercourse based on preceding events at the bar and the playground. Considering the record evidence and deferring to the credibility determinations of the Vice President of Student Affairs, substantial evidence supports the determination that petitioner committed the violations of rape and sexual assault (see ...